I represent clients in a real estate lawsuit against a couple. Separately, I'm being asked to represent other individuals who may end up bringing a class action over legislation, and that couple would be unnamed members of that class. Is that a conflict?

Plain-English summary

Several individuals sought to retain the inquiring attorney to represent them at legislative proceedings affecting them and a substantial number of others; if the resulting legislation were unfavorable, those individuals would likely retain the attorney for a class action. Two opposing parties in a pending, unrelated real estate case the attorney was litigating for other clients (Mr. and Mrs. Doe) shared the same interest in the legislative proceedings as the prospective class members and would themselves be members of the anticipated class, though they had not individually retained or consulted the attorney.

The panel applied Rule 1.7(a), asking whether representing the prospective class members would be directly adverse to the attorney's current clients (the real estate plaintiffs) or present a significant risk of material limitation. It relied on Comment 24 to Rule 1.7, which states that when a lawyer represents or seeks to represent a class, unnamed class members are ordinarily not considered clients of the lawyer for purposes of Rule 1.7(a)(1); the lawyer therefore does not typically need an unnamed class member's consent before representing a client suing that person in an unrelated matter, and the reverse situation (representing an opponent of the class in an unrelated matter) raises the same rule. The panel also cited the New York City Bar Association's Formal Opinion 2004-01, which concluded that a class member who did not individually retain or consult the class lawyer does not block that lawyer from accepting an unrelated matter against the class member during the pendency of the class action. Because Mr. and Mrs. Doe were unnamed class members who had not retained or consulted the attorney, and because the real estate matter was unrelated to the class action, the panel concluded there was no Rule 1.7 conflict.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, unnamed members of a class the lawyer represents or seeks to represent are ordinarily not the lawyer's clients for purposes of Rule 1.7(a)(1)'s direct-adversity test, so a lawyer does not need an unnamed class member's consent to represent a different client suing that person in an unrelated matter. The opinion's conclusion is limited to unnamed class members who have not individually retained or consulted the lawyer, and to a matter unrelated to the class action.

Common questions

Q: Does representing a class create a conflict with every person who happens to be a class member?

A: No, according to this opinion. Citing Comment 24 to Rule 1.7, the panel holds that unnamed class members are ordinarily not considered clients of the class lawyer for direct-adversity purposes, so representing the class does not automatically conflict with unrelated representations adverse to a class member.

Q: Does it matter that the two class members were already adverse parties to my current clients in a different case?

A: Not on these facts. The opinion concludes that because the real estate matter is unrelated to the class action and the two individuals are only unnamed class members who never individually retained or consulted the attorney, there is no Rule 1.7 conflict.

Q: Would the answer be different if Mr. and Mrs. Doe had individually retained or consulted the attorney about the legislative matter?

A: The opinion's analysis turns on the unnamed-class-member status recognized in Comment 24 and in NYC Bar Formal Opinion 2004-01; both authorities distinguish class members who individually retained or consulted the lawyer from those who did not.

Background and rules framework

The opinion interprets Rhode Island Rule 1.7(a) (Conflict of Interest: Current Clients), which tracks Model Rule 1.7(a) and its Comment 24 addressing class actions specifically: unnamed class members are ordinarily not clients of the class lawyer for purposes of the direct-adversity test in Rule 1.7(a)(1). The panel also drew on the New York City Bar Association's Formal Opinion 2004-01 addressing the same class-action conflicts question.

Citations and references

Rules of Professional Conduct:

• MR 1.7(a) (concurrent conflicts of interest; direct adversity; significant risk of material limitation)
• MR 1.7, Comment 24 (unnamed class members ordinarily not clients of the class lawyer)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• NYC Bar Association Committee on Professional and Judicial Ethics, Formal Op. 2004-01 (2004): unnamed class member who did not individually retain or consult the class lawyer does not block an unrelated matter against that member

See also

• NYC Bar Formal Op. 2004-01: Lawyers in Class Actions
• ABA Formal Op. 07-445: Contact With Putative Class Members
• DC Bar Op. 301: Concurrent Representation of Two Plaintiffs Against a Common Defendant

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2009-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

              Rhode Island Supreme Court Ethics Advisory Panel
                  Opinion No. 2009-02 Request No. No. 961
                            Issued June 11, 2009

FACTS:

    Several individuals seek to retain the inquiring attorney to represent them at

legislative proceedings. The resultant legislation would affect not only the individuals
who seek to retain the inquiring attorney, but also a substantial number of others. If the
resultant legislation is not favorable to the individuals, it is likely that they will retain the
inquiring attorney to represent them in a class action.

     The inquiring attorney currently represents parties in a real estate matter that is in

litigation. Two opposing parties in the real estate case (hereinafter, Mr. and Mrs. Doe)
are persons who share the same interest in the legislative proceedings as the individuals
who seek to retain the inquiring attorney for the legislative proceedings and the eventual
class action. Mr. and Mrs. Doe would be members of the class should a class action
proceed on the resultant legislation. The real estate matter is unrelated to the class action.

ISSUE PRESENTED:

    The inquiring attorney asks whether he/she may represent the individuals seeking

to retain him.

OPINION:

    The Panel concludes that it is not a conflict of interest under Rule 1.7 for the

inquiring attorney to represent individuals who seek to retain him/her in an eventual class
action where two unnamed members of the class are adverse parties to the inquiring
attorney's current clients in a real estate matter that is unrelated to the class action.

REASONING:

    Rule 1.7 of the Rules of Professional Conduct is pertinent to this inquiry. It states

as follows:

            Rule 1.7 Conflict of Interest: Current Clients (a) Except
            as provided in paragraph (b), a lawyer shall not represent a
            client if the representation involves a concurrent conflict of
            interest. A concurrent conflict of interest exists if:
                     (1) the representation of one client will be directly
            adverse to another client; or;

Final Op. 2009-02
Page 2 of 3

                         (2) there is a significant risk that the representation
                 of one or more clients will be materially limited by the
                 lawyer's responsibilities to another client, a former client or
                 a third person or by a personal interest of the lawyer.
                         (b) Notwithstanding the existence of a concurrent
                 conflict of interest under paragraph (a), a lawyer may
                 represent a client if:
                         (1) the lawyer reasonably believes that the lawyer
                 will be able to provide competent and diligent
                 representation to each affected client;
                         (2) the representation is not prohibited by law;
                         (3) the representation does not involve the assertion
                 of a claim by one client against another client represented
                 by the lawyer in the same litigation or other proceeding
                 before a tribunal; and
                         (4) each affected client gives informed consent,
                 confirmed in writing.

          For purposes of this discussion, the Panel makes the following assumptions: (a)
  The resultant legislation is not favorable to the individuals who seek to retain the
  inquiring attorney, and the inquiring attorney is retained by the individuals to represent
  them in a lawsuit which is a class action; and (b) Mr. and Mrs. Doe are members of the
  class, but are not the individuals who retained the inquiring attorney. What, then, is the
  relationship between the inquiring attorney and Mr. and Mrs. Doe for purposes of the
  conflict-of-interest rules?

         The Comment to Rule 1.7 is instructive. It provides:

                 [24] When a lawyer represents or seeks to represent a class
                 of plaintiffs or defendants in a class action lawsuit,
                 unnamed members of the class are ordinarily not
                 considered to be clients of the lawyer for purpose of
                 applying paragraph (a)(1) of this Rule. Thus, the lawyer
                 does not typically need to get the consent of such a person
                 before representing a client suing the person in an unrelated
                 matter. Similarly, a lawyer seeking to represent an
                 opponent in a class action does not typically need the
                 consent of an unnamed member of the class whom the
                 lawyer represents in an unrelated matter.

         In discussing the conflicts-of-interest issues presented to class lawyers, the N.Y.C.
  Bar Association Committee on Professional and Judicial Ethics concluded that if a class
  member did not individually retain the class lawyer or consult with that lawyer, the
  lawyer would not be prohibited from accepting an unrelated matter against the class

Final Op. 2009-02
Page 3 of 3

  member during the pendency of the class action. N.Y.C. Bar Association Committee on
  Professional and Judicial Ethics, Op. 2004-01 (2004).

          The Panel is of the opinion that Mr. and Mrs. Doe, as unnamed members of the
  class that would be represented by the inquiring attorney, would not be clients of the
  inquiring attorney. Comment [24], Rule 1.7. Moreover, the pending real estate matter, in
  which Mr. and Mrs. Doe are the defendants and the inquiring attorney's clients are the
  plaintiffs, is unrelated to the class action. The Panel concludes that it is not a conflict of
  interest under Rule 1.7 for the inquiring attorney to represent individuals who seek to
  retain him/her in an eventual class action where two unnamed members of the class are
  adverse parties to the inquiring attorney's current clients in a real estate matter that is
  unrelated to the class action.